A federal appeals court was asked Tuesday to allow enforcement of legislation stripping the embattled activist group ACORN of government funding.
Mark Stern of the U.S. Department of Justice told the 2nd U.S. Circuit Court of Appeals that ACORN does not have a property interest in government contracts and Congress' move to ban the group from receiving government funds was constitutional.
In 2009, Congress enacted and President Barack Obama signed a continuing appropriations resolution, §163, which specifically barred federal funding of ACORN and its affiliates.
ACORN, the Association of Community Organizations for Reform Now, filed suit in November 2009. After Tuesday's arguments, ACORN CEO Bertha Lewis said that Congress' actions contributed to crippling the group's ability to keep staff and raise funds. The national ACORN group is now in bankruptcy and the New York and California chapters have split off to form their own organizations.
Tuesday, Stern was asking the circuit for an emergency stay pending appeal of a March decision by Eastern District Judge Nina Gershon, who granted a preliminary injunction blocking enforcement of the funding restrictions.
Gershon found that the legislation was an unconstitutional bill of attainder, a rarely litigated bar in the U.S. Constitution (Article I, Section 9) on legislation punishing a single person or group.
She denied the government's motion for a stay pending appeal on March 31 and Stern headed for the 2nd Circuit, where he argued Tuesday before Judges Roger J. Miner, Jose A. Cabranes and Richard C. Wesley in ACORN v. United States, 10-992.
Stern claimed that Congress had the right to instruct agencies to withhold funding from ACORN amid "indisputable reports of ACORN mismanagement nationwide."
"This is a case of taking steps on the appropriation of federal funds," Stern said. "And if Congress sees widespread mismanagement, it says 'time out.'"
But Jules Lobel of the Center for Constitutional Rights, representing ACORN, said his client has a "liberty interest in not being suspended from a government contract for more than 30 days without due process."
He said Congress' decision to target one organization for punishment clearly met the standard for a bill of attainder, which has been found by the U.S. Supreme Court to have been issued only five times: three times during the Civil War era (when Congress passed laws limiting the rights of people who refused to take an oath that they had not supported the rebellion) and twice during the McCarthy era (where Congress attempted to bar "subversives" or Communist Party members from holding certain jobs.)
Lobel said the injury in New York was real, as the federal Department of Housing and Urban Development, following the orders of Congress, blocked funding for the Mutual Housing Association of New York (formerly New York ACORN Housing Co. Inc.)
Lobel said the housing association manages some 1,200 apartments and is unable to fill vacant units without the HUD subsidies.
If the court granted the stay, Lobel said, "They will be denied funding and those people will be on the street."
Lobel said the "weakness" in the government's case was that "if there is any fraud or misconduct, there is a whole regulatory system for HUD or anyone else to say, 'We're not going to fund it.'"
Cabranes asked whether Lobel was implying that "agencies are in some sense entitled" to greater deference than the Congress.
"No," Lobel responded, "due process does."
When Stern returned to the lectern, he insisted there had been "no deprivation" that would trigger due process protections.
Stern acknowledged to the panel that Congress had taken an "unusual" move when it ended ACORN's funding.
Lobel got back up to say his opponent was guilty of understatement.
"The district court found it unprecedented," he said.
The circuit panel reserved decision.